Student Rights

Don Closson

Introduction

A number of years ago a school in Missouri was instructed by court
order to sponsor school dances over the objections of parents and
the school board because the court claimed that the opposition was
of a religious nature thus violating separation of church and
state. Students have been stopped from voluntarily praying before
athletic events, informal Bible studies have been moved off campus,
and traditions such as opening prayer and benedictions during
graduation ceremonies have been halted by court order or
administrative decrees. Textbooks have also been purged of Judeo-
Christian values and teachers have been ordered to remove Bibles
from their desks because of the potential harm to students that
they represent. Have the schools created an environment that is
hostile to Christian belief?

Stephen Carter, a Yale law professor (The Culture of
Disbelief, Basic Books, 1993) argues that religion in America
is being reduced to the level of a hobby, that fewer and fewer
avenues are available for one's beliefs to find acceptable public
expression. Our public schools are a prime example of this
secularization. This has caused undue hardship for many Christian
students. Some administrators, reacting to the heated debate
surrounding public expressions of faith, have sought to create a
neutral environment by excluding any reference to religious ideas
or even ideas that might have a religious origin. The result has
often been to create an environment hostile to belief, precisely
what the Supreme Court has argued against in its cases which
restricted practices of worship in the schools such as school-led
prayer and Scripture reading. The fallout of removing a Christian
influence from the marketplace of ideas on campus has been the
promotion of a naturalistic world view which assumes that the
universe is the consequence of blind chance.

This whole area of student rights is a relatively recent one. In
the past, the courts have been hesitant to interfere with the
legislative powers of state assemblies and the authority of locally
elected school boards. But since the sixties, more and more issues
are being settled in court. This trend reflects the breakdown of a
consensus of values in our society, and it is likely to get worse.

When public schools reinforce the values held in common by a
majority of parents sending their children off to school, conflicts
are likely to be resolved locally. But in recent decades school
administrators have been less likely to support traditional Judeo-
Christian values which are still popular with most parents.
Instead, schools have often abandoned accommodating neutrality and
purged Christian thought from the school setting. Parents and
students have felt compelled to take legal action, claiming that
their constitutional rights of free speech and religious expression
have been violated.

How should the U. S. Constitution's guarantee of freedom of
religion be balanced with the growing diversity in our public
schools? In a time of growing centralization in education, how can
schools cope with the rights of students that are far more
diversified than in the past?

In this pamphlet we will look at some of the specific issues
surrounding the concept of student rights beginning with a
definition of the often used phrase "separation of church and
state." Then we will cover equal access, freedom of expression, the
distribution of religious materials, prayer, as well as the Hatch
Amendment.

Separation of Church and State

In 1803 Thomas Jefferson helped to ratify a treaty with the
Kaskaskia Indians resulting in the United States paying one hundred
dollars a year to support a Catholic priest in the region, and
contributing three hundred dollars to help the tribe build a
church. Later, as president of the Washington, D.C., school board,
Jefferson was the chief author of the first plan for public
education in the city. Reports indicate that the Bible and the
Watts Hymnal were the principal, if not the only books, used for
reading in the city's schools. Yet those who advocate a strict
separation between church and state usually refer back to Thomas
Jefferson's use of the phrase in 1802 when speaking to the Danbury
Baptist Association in Connecticut. By using this phrase did
Jefferson hope to separate Christian thought and ideals from all of
public life, including education? Actually, Jefferson was a very
complex thinker and desired neither a purely secular nor a
Christian education.

What then, does the phrase "separation of church and state" mean?
More importantly, what did it mean to the Founding Fathers? This is
a crucial issue! A common interpretation was recently expressed in
a major newspaper's editorial page. The writer argued that public
school students using a classroom to voluntarily study the Bible
would be a violation of the establishment clause of the First
Amendment, and that the mere presence of religious ideas and speech
promotes religion. His reasoning was that the tax dollars spent to
heat and light the room puts the government in the business of
establishing a religion. Is this view consistent with a historical
interpretation of the First Amendment?

Recent Supreme Court cases dealing with church/state controversies
have resulted in some interesting comments by the justices. In the
Lynch vs. Donnelly case in 1984, the court mentioned that in
the very week that Congress approved the Establishment Clause as
part of the Bill of Rights for submission to the states, it enacted
legislation providing for paid chaplains for the House and Senate.
The day after the First Amendment was proposed, Congress urged
President Washington to proclaim a day of public thanksgiving and
prayer. In Abington vs. Schempp the Court declared that the
Founding Fathers believed devotedly that there was a God and that
the unalienable rights of man were rooted in Him and that this is
clearly evidenced in their writings, from the Mayflower Compact to
the U. S. Constitution itself.

The Supreme Court has recognized that every establishment clause
case must balance the tension between unnecessary intrusion of
either the church or the state upon the other, and the reality
that, as the Court has so often noted, total separation of the two
is not possible. The Court has long maintained a doctrine of
accommodating neutrality in regards to religion and the public
school system. This is based on the case Zorach vs. Clauson
in 1952 which stated that the U. S. Constitution does not require
complete separation of church and state, and that it affirmatively
mandates accommodation, not merely tolerance of all religions,
forbidding hostility toward any.

Any concept of students' rights must include some accommodation by
our public institutions in regards to religious beliefs and
practices. The primary purpose of the First Amendment, and its
resulting "wall of separation" between church and state, is to
secure religious liberty.

Equal Access

On the surface, this issue seems fairly uncomplicated. Do students
have the right to meet voluntarily on a high school campus for the
purpose of studying the Bible and prayer if other non-curricular
clubs enjoy the same privilege? Yet this issue has been the focus
of more than fifteen major court cases since 1975, the Equal Access
Act passed by Congress in 1984, and finally a Supreme Court case in
1990.

To many, this subject involves blatant discrimination against
students who participate in activities that include religious
speech and ideas. By refusing to allow students to organize Bible
clubs during regular club meeting times, administrators are
singling out Christians merely because of the content of their
speech.

To others, the idea of students voluntarily studying the Bible and
praying presents a situation "too dangerous to permit." Others see
equal access as just another attempt to install prayer in the
public schools, and they hold up the banner of separation of church
and state in an attempt to ward off this evil violation of our
Constitution.

Let's review exactly what legal rights a student does enjoy thanks
to the "Equal Access" bill and the Mergens Supreme Court decision
in 1990. First, schools may not discriminate against Bible clubs if
they allow other non-curricular clubs to meet. A non-curricular
club or student group is defined as any group that does not
directly relate to the courses offered by the school. Some examples
might be chess clubs, stamp collecting clubs, or community service
clubs. School policy must be consistent towards all clubs
regardless of the content of their meetings. The specific
guidelines established are:

The club must be student initiated and voluntary.

The club cannot be sponsored by the school.

School employees may not participate other than as invited
guests or neutral supervisors.

The club cannot interfere with normal school activities.

It also goes without saying that these clubs must follow other
normally expected codes of behavior established by the school. The
federal government can cut off federal funding of any school that
denies the right of students to organize such clubs. This is a
substantial penalty given that title moneys for special education,
vocational training, and library materials are a significant
portion of many schools' income.

One would think that the passing of the Equal Access Bill and its
affirmation by the Supreme Court would have settled this issue. It
didn't. Mostly due to ignorance of the law and occasionally an
anti-religion bias, school administrators sometimes still balk at
allowing Bible clubs. Unfortunately, it may take a letter from a
Christian legal service in order to bring some school
administrators up to speed on the legality of the clubs. Even so,
some schools are removing all non-curricular clubs in order to
avoid having to allow Bible clubs. This is a remarkable position
for school administrators to take and is yet another evidence of
the polarization taking place in our society between religious and
non-religious people.

The way that students utilize the right to equal access is
important. The agenda for any such club should be (1) to encourage
and challenge one another to strive for excellence in every area of
life and (2) to be a source of light within the secular darkness
covering much of our teenage culture today. Angry confrontation
with administrators and other students would ruin the positive
witness such a club might otherwise accomplish.

Other Rights of Christian Students

In 1969, two high school students and one junior high student who
wore black arm bands in protest of the Vietnam war. They were
warned of potential expulsion, an admonition which they ignored,
and were subsequently removed from school.

The resulting court case made its way to the Supreme Court which
determined that students do not shed their constitutional rights at
the school house door. This landmark decision, known as the Tinker
case, greatly affected the way school administrators deal with
certain types of discipline problems. Since the students chose a
non-aggressive, non-disruptive form of protest, and since there was
no evidence that they in any way interfered with the learning
environment of the school, the Court argued that the administrators
could not forbid protest simply because they disagreed with the
position taken by the students or because they feared that a
disruption might occur.

A two-point test has been suggested as a result of the Tinker case.
Before setting a policy that will forbid some student behavior,
administrators must prove that the action will interfere with or
disrupt the work of the school, or force beliefs upon another
student. Christians that wear crosses or T-shirts with a Christian
message violate neither test. The same idea applies to the spoken
word. The Tinker decision embraced the idea that fear or
apprehension of disturbance is not enough to overcome the right of
freedom of expression. Words spoken in class, in the lunchroom, or
on the campus may conflict with the views of others and contain the
potential to cause a disturbance, but the Court argued that this
hazardous freedom is foundational to our national strength.

The Supreme Court has affirmed the right of Christians to
distribute literature on campus, with some qualifications. In the
case Martin vs. Struthers the Court equated free speech with
the right to hand out literature as long as the literature in
question was not libelous, obscene, or disruptive. If the school
has no specific policy concerning the distribution of literature by
students, Christians may freely do so. If a policy exists, students
must conform to it. This may include prior examination of the
material, and distribution may be denied during assemblies and
other school functions. Outsiders do not enjoy similar privileges.
The literature must be selected and distributed by the students.

Although the Supreme Court has outlawed school-sponsored prayer and
reading from the Bible, it has not moved to restrict individuals
from doing so. Graduation prayers by students have created a legal
battle which resulted in Lee vs. Weisman, a Supreme Court
decision which found that a prayer which was guided and directed by
the school's principal was unconstitutional. The Court basically
said that the school cannot invite a professional clergyman to a
school function in order to pray. Students or others on the program
may pray voluntarily. The student body may choose a student to act
as a chaplain. Another scenario might have parents or students
creating the agenda for the graduation ceremony, thus removing the
school from placing a prayer on the program. Students do not shed
their constitutional right to free speech when they step to the
podium.

Christian students on campus must remember that certain
responsibilities coincide with these rights. Proverbs 15:1 states
that, "A gentle answer turns away wrath, but a harsh word stirs up
anger." If we use our rights and privileges in a Christlike manner
we will indeed be His ambassadors, anything less would be contrary
to His will.

Other Student Rights

In 1925, the Supreme Court case Pierce vs. Society of
Sisters debated the right of parents to send their children to
private schools. In that case, justice James McReynolds said, "The
child is not the mere creature of the State; those who nurture him
and direct his destiny have the right coupled with the high duty,
to recognize and prepare him for additional obligations." In 1984,
Congress held a series of hearings on reported abuses by educators
who were attempting to change the beliefs of their students in a
way that might again be a challenge to parental authority. Congress
found that some schools might be overstepping their traditional
role by concentrating more on what students believe than on what
they know.

The result of these hearings is a law commonly known as the Hatch
Amendment. The law protects students from federally sponsored
research and experimental programs that make inquiries into
students' personal sexual, family, and religious lives. The law
stipulates that all materials, including manuals, audio-visuals,
and texts are to be made available to parents for review. And
secondly, students shall not be required to submit to psychiatric
testing, psychological examination, or treatments which delve into
personal areas that might be considered sensitive family matters.
But there is one big problem with the law, it only covers federally
funded experimental or research-driven programs. What about abusive
course-work which isn't funded directly by federal research?

In regards to day-to-day classwork, the courts have made a
distinction between mere exposure to objectionable material and a
school's attempt to coerce its students to adopt a particular
political or religious viewpoint. Parents who can prove that
coercion is taking place will have a much greater chance in court
of forcing the school to accommodate to their beliefs by changing
the school's practices. If coercion is not taking place, and a
child is merely being exposed to objectionable material, being
excused from the class is more likely.

On the positive side, Christian students do have the right to
include religious topics and research in their school work when
appropriate. In Florey vs. Sioux Falls School District,
Circuit Judge McMillian clarified why students have the right to
use religious materials in the classroom. He states that, "To allow
students only to study and not to perform religious art, literature
and music when such works have developed an independent secular and
artistic significance would give students a truncated view of our
culture." In another case titled the Committee for Public
Education vs. Nyquist, the Supreme Court stated, "The First
Amendment does not forbid all mention of religion in public
schools. It is the advancement or inhibition of religion that is
prohibited." When presented objectively any religious topic is fair
game for both student and teacher. Indeed, both could make good use
of this freedom in covering such topics as the religious views of
our Founding Fathers, what role Christian thought has played in
important issues such as slavery and abortion, and how Christian
thought has been in conflict with other world views.

Students can be an effective instrument for reaching other students
with the Gospel, but only if they are living consistently with what
they believe. This is possible given the rights granted them by the
U. S. Constitution. It is our job as parents to see that our
schools protect the rights of our children not only to believe, but
to live Christianly, for what good is freedom of religion if it
covers only our private lives?